FAPE Does Not Include Religious and Cultural Instruction

The Supreme Court just denied certiorari in a case from last summer that has received considerable attention around the country. M.L. ex rel. Leiman v. Smith, 867 F.3d 487, 70 IDELR 142 (4th Cir. Aug. 14, 2017), cert. denied, 86 U.S.L.W. 3354, 86 U.S.L.W. 3356 (U.S. Jan. 16, 2018). In M.L., the parents of an Orthodox Jewish child with Down Syndrome and an intellectual disability who was born in 2003, sought tuition reimbursement and continuing prospective placement for the child in Sulam School, a private institution dedicated to instruction in Orthodox Jewish religion and culture. The parents did not contest the Individualized Education Program (IEP) offered by the Montgomery County, Maryland public schools, except for its failure to provide for instruction of the child in the customs and practices of Orthodox Judaism. The parents’ argument was that the IEP was not appropriate because it did not provide the education that would prepare the child for life in the Orthodox Jewish community. They said that he needed constant repetition and consistency of instruction that would meet his cultural and religious needs, so that he could generalize from school to religious life. They contended that he would never participate in the secular community, but only in the Orthodox Jewish community, and so would need an IEP that included teaching in the Torah and other religious texts, kosher rules, garments associated with Orthodox Judaism, ritual blessings, Hebrew language, and Jewish law. The parents said this education could be accomplished only at a religious school such as Sulam.

The Fourth Circuit affirmed administrative and district court decisions against the parents. The unanimous ruling, written by Judge Agee, began with a discussion of Board of Education v. Rowley, 458 U.S. 176 (1982), which pointed out the case’s emphasis on procedures and on access to instruction that would provide benefit to the child. The court conceded that the Fourth Circuit standard for appropriate education mirrored that of Tenth Circuit rejected by Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017). But the court said that the IDEA would not provide the relief the parents wanted no matter what appropriate education standard were applied, and further said that the parents never identified any way in which Endrew F. would affect the case.

Turning to the merits of the claim, the court declared that “religious and cultural instruction does not fall within the school’s duty to provide a disabled student with access to the general curriculum. Under the IDEA, the school must only address the student’s individual needs to the extent it takes to provide that access.” 867 F.3d at 497. Quoting from Rowley, the court said the school system “is not required to “maximize the potential of handicapped children commensurate with the opportunity provided to other children.” Id. Since the parties agreed that the public school IEP met the child’s secular needs, that was enough. The school system was willing to accommodate the child’s dietary practices and to make adjustments for his cultural and religious practice. The court acknowledged that difficulties the child had with generalizing from one setting to another, but said that “the Plaintiffs do not truly argue that the IEP fails to generalize M.L.’s education across the school and home settings. Instead, they contend that the religious instruction he receives at home should be generalized to the school setting.” Id. at 498. The court did not consider defenses proffered by the school system based on the Establishment Clause of the First Amendment, and it did not address Free Exercise Clause arguments raised only belatedly by the parents.

Other courts have addressed a number of issues involving religion and the IDEA. In Zobrest v. Catalina Foothills School District, 509 U.S. 1, 19 IDELR 921 (1993), the Supreme Court ruled that public funding of a sign-language interpreter for a child at a Catholic school did not violate the Establishment Clause. In contrast, the Court ruled in a case from New York that creation of a special school district to provide special education for the children in a Hasidic religious community ran afoul of the Establishment Clause because its principal or primary effect was the advancement of religion. Board of Educ. v. Grumet, 512 U.S. 689, 21 IDELR 148 (1994). The First Circuit has ruled that refusal of a school district to provide a full range of special education and related services for a child being educated in a religious academy did not violate the Free Exercise Clause. Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 41 IDELR 118 (1st Cir. 2004).

Public support of various kinds for religious schools continues to be a subject of controversy. Most recently, the Supreme Court ruled that the exclusion of a preschool and daycare center operated by a church on church property could not be excluded from a state program offering reimbursement to nonprofit organizations for surfacing of playgrounds with recycled tire materials. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (June 26, 2017). The denial of the grant was based on the Missouri Constitution, which forbade the state from providing financial assistance to a church. The Court ruled that the exclusion of a generally available benefit solely on the ground of religious identity imposed a penalty on free exercise of religion, and overturned the exclusion.